Can Chicago Cops Get Overtime for Checking E-Mails At Home?

Despite the prevalence of smartphones in the office, there’s surprisingly little settled law about off-time PDA use. It’s not the only reason the lawsuit could be a mess.

By Whet Moser

Published Feb. 7, 2013

This story has been making the rounds recently: a CPD officer has filed suit against the city, contending that he (and other officers) should be paid for having to check and respond to work e-mail and phone calls while off duty. It’s been floating around the courts for three years, but a magistrate judge just ruled that it can continue, so it’s back in the news.

It’s a knotty case, with a lot depending on what “having to” means, what “work” means, how much time the officers spent doing what while off duty, when they did it, and whether they were explicitly or implicitly pressured to not submit overtime for doing so. Let’s start with this, for instance:

After the suit was filed three years ago, then-Chicago Mayor Richard M. Daley said asking for overtime pay for cellphone use is “silliness.” He told a news conference at the time, “We’re public servants. If I asked for that, I’d be paid millions of dollars.”

But the law cited by the suit, the Federal Labor Standards Act, does not apply to salaried public officials, Geiger argued Wednesday.

The city previously lost a case that bears on this somewhat. In Graham v. City of Chicago, cops sued for overtime because “they were required to board the dogs at their homes, as well as feed, exercise and groom the dogs while off-duty. They were also required to transport the dogs to and from work and to drive directly to work and to home” (PDF). The court ruled that this was indeed part of their job, and it’s been used as case law:

Based on these findings, the court concluded that, following Graham v. City of Chicago, 828 F.Supp. 576 (N.D.Ill.1993), the TA was required to compensate the handlers for all time spent commuting to and from work. The court found that transporting the dogs is compensable “because that activity is not segregable from the primary activity the officers are engaged in.” Id. at 181 (emphasis in original). The court ordered the TA to pay overtime back wages totalling $146,267.68.

Cops are considered hourly workers under the Fair Labor Standards Act, with limited exceptions; if they have to do overtime work without compensation, they can sue. In that sense they’ve got a case. But it gets more complicated. First, there’s the issue of whether the work is de minimis, or too piddling to compensate. From the case above (Reich v. New York Transit Authority):

While handlers testified that they were required to restrain their dogs when they barked or misbehaved, it does not appear that such behavior occurred frequently or lasted for a significant time. Indeed, most handlers conveyed that their dogs responded quickly to discipline; it appears the time spent disciplining the dogs was insubstantial. Similarly, the cases in which the dogs vomited or soiled their handlers’ cars, or required a stop to be walked, were few and far between.

Basically, the court said that K9 cops can be compensated for “actively caring” for their dogs, but not for cleaning up half-digested dog chow. Someone who is cleaning up dog vomit out of a Crown Vic may consider that to be caring for his dog, but such are the finer points of law.

So one question is going to be: when the cops in question are checking e-mail and taking phone calls, is it closer to the burden of caring for a dog or sopping up puke? For instance (PDF):

While no bright-line rule exists, work taking less than 10 minutes is generally considered de minimis. To avoid this exception, FLSA plaintiffs will seek to aggregate their e-mails, text messages and other communications with a company, which individually might be considered de minimis, but collectively could be significant.

There’s not much in the way of case law; as you might expect, given the proliferation of smartphones, similar lawsuits have been filed, but they’ve all been surprisingly recent and thus mostly unsettled. Given that, the one thing lawyers say is to put everything in writing, which is the other tricky part of the CPD cellphone lawsuit. The city says that if a cop is working overtime, he should fill out a slip, give it to his supervisor, and get paid for it. But (from the decision, PDF):

[E]vidence of lawful written policies compensating for overtime work does not automatically defeat an FLSA claim where a plaintiff presents “countervailing evidence” of a common policy of not paying overtime…. “[R]egardless of what a company’s official policy says, some evidence that a separate policy is enforced by ‘more than a rogue manager or two’ supports a conclusion that similiarly situated employees were subject to a common practice violating the FLSA.”

The evidence presented on that “common practice” so far on that comes from eight deposed CPD officers.

* Two said they were told they had to monitor their BlackBerries.

* Five said they weren’t told they had to.

* One said he “had no understanding or knowledge of anything regarding off-duty BlackBerry use.”

* Of the five, “four testified that they nevertheless understood or believed that they were expected to monitor their BlackBerries….”

* None said they were specifically told to submit overtime for BlackBerry use.

* Seven of the eight didn’t do so.

* One of those seven said “he thought submitting an overtime slip for off-duty BlackBerry use would be frowned upon; he did not submit an overtime slip because he ‘liked his job’ and his bosses.

* Two said they didn’t submit them because they thought their use was minimal; another said he wasn’t a “bean counter.”

* One did submit overtime for “a minimum of one hour for that BlackBerry work,” and got paid.

So: this could be a mess. And the conclusion of the decision is basically, “wow, this is a mess.”

Despite plaintiff’s ability to survive state one of the FLSA collective action question, we reiterate our questions “about the ability to treat on a class basis the broad range of situations in which police personnel may ‘respond’ to messages that are sent to them on PDAs, the extent to which those responses might constitute ‘work,’ and the extent to which any work might not be compensable because it is ‘de minimis.’”

Translation: We have no idea if the plaintiff can take this morass of responses and make a claim that it’s a common practice. Good luck!

We also harbor doubts as to how plaintiff will determine the extent of some of the alleged off-duty BlackBerry “work,” such as the amount of time an officer spent monitoring emails on a BlackBerry versus reading or responding to emails while off-duty (when people regularly receive hundreds of emails at all hours, and where officers were allowed “limited personal use of their CPD-issued BlackBerries.

Translation: once you get done defining “work” and “respond,” the math is going to be even harder.